Article updated in Forensic Magazine, July 24.

Not everyone agrees that this decision will cripple crime labs and compound backlogs. The Allegheny County Medical Examiner in Pennsylvania, Dr. Karl E. Williams, sees this as no more than an irritation. 

Duquesne University law professor Bruce Antkowiak concurs, believing that few defense attorneys would want to put a scientist on the witness stand.

"To a jury, the most compelling evidence is the scientific evidence," Antkowiak told the Tribune-Review. "As a defense attorney, the last thing you want is to put that nice, impressive scientist on the stand to go into great detail and show blown-up photographs of evidence that will just fascinate the jury, and it's stuff you probably aren't even contesting in the first place.”

“The decision in Melendez-Diaz v. Massachusetts will have relatively little impact on prosecutors in Michigan, which is among a minority of states that already require lab technicians to testify about any test results they produce,” Brian Dickerson wrote for the Detroit Free Press. “But it effectively precludes legislation to ease that burden on Michigan State Police scientists, who are currently logging 15 or more hours of overtime a week to process an enormous backlog of forensic evidence.”

Dickerson agreed, that the sky will not fall due to the Melendez-Diaz decision. “But the cost of putting those who manufacture, sell, and use illicit drugs behind bars rose significantly this week. And now those of us who pay the freight have even more reason to wonder if we're getting our money's worth,” he writes.

Michigan, however, may hold the key to dealing with the burden imposed by the Court’s decision. When the state passed .08 BAC legislation, law enforcement was encouraged to ask for drug and blood screening on all blood draws of suspected impaired driving offenders. This caused a dramatic spike in the caseload for blood/alcohol analysis at the Michigan State Police Forensic Science Division's Toxicology Laboratory.

Due to Michigan’s requirement for analyst testimony, lab scientists were forced to spend a significant portion of their workday traveling and testifying in courts across the state. The Michigan State Police decided to implement a video testimony program allowing analysts to testify from their own labs via video transmission. Video technology even allows analysts to schedule multiple testimonies with various courts across the state on the same day.

After multiple video testimonies utilized by courts across the state, overall savings are estimated at approximately $1,100 per testimony. This technology has also saved the state many staff hours (typically wasted in travel time), utilizing the technology to reduce the time scientists are out of the lab to 30 minutes instead of 14 hours, the Michigan Office of Highway Safety Planning reports.

After one full year of operation, the State Police Forensic Science Laboratory experienced a decreased alcohol backlog of approximately 150 - 200 cases from a high of 300 cases, with a turnaround time of approximately 5 days, from a high of 14 days. The toxicology (drug) backlog decreased to approximately 600 cases from a high of 1,000 cases with a turnaround time of 60 days, from a high of 120 days.

Virginia, too, might have a solution in the form of a state Supreme Court decision allowing the prosecution to give the defense notice before the trial if they intend to use a lab report. This gives the defense a chance to request the analyst’s testimony prior to the trial. The U.S. Supreme Court will be hearing a case in their next term to determine whether this ruling is consistent with the requirements of Melendez-Diaz.

Depending on how states choose to interpret the Court’s decision. Creative solutions like those in Michigan and Virginia could mitigate the burden on crime labs.

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From Forensic Magazine:

A U.S. Supreme Court ruling last Thursday will require crime lab analysts to appear in court and submit to cross-examination if their reports are entered into evidence. This ruling could have tremendous impacts on how crime labs operate and exacerbate the backlog problems that plague crime labs nationwide.

The contentious 5-4 ruling in Melendez-Diaz v. Massachusetts asserts that forensic analysts must testify under the Sixth Amendment Confrontation Clause granting defendants the right to confront witnesses against them. Previously analysts could be subpoenaed to court to explain their reports or methodology, but it was a rare practice.

In his decision, Justice Antonin Scalia called into question the reliability of forensic science as a whole, citing the recent National Academy of Science report. Refuting the argument that forensic reports, as scientific findings, are neutral facts rather than accusatory testimony, Justice Scalia wrote, “Forensic evidence is not uniquely immune from the risk of manipulation. According to a recent study conducted under the auspices of the National Academy of Sciences. … Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well. Serious deficiencies have been found in the forensic evidence used in criminal trials.”

“Like expert witnesses generally, an analyst’s lack of proper training or deficiency in judgment may be disclosed in cross-examination,” Scalia adds.

In his dissenting opinion, Justice Anthony M. Kennedy strongly opposes this interpretation of the Confrontation Clause claiming that the Court is haphazardly sweeping away a century of precedent for dealing with scientific evidence.

The Court leaves it to individual states to establish a procedure for contesting lab reports and calling analysts to court, so it is difficult to tell what the full consequences of this decision will be and how it will be interpreted.

“The Court dictates to the States, as a matter of constitutional law, an as-yet-undefined set of rules governing what kinds of evidence may be admitted without in-court testimony. Indeed, under today’s opinion the States bear an even more onerous burden than they did before,” Justice Kennedy protests.

“There is no accepted definition of analyst, and there is no established precedent to define that term,” Justice Kennedy adds. “Consider how many people play a role in a routine test for the presence of illegal drugs. It is not at all evident which of these persons is the analyst to be confronted under the rule the Court announces today.”

Dean Gialamas, ASCLD President, says that though it is hard to know how Thursday’s ruling will be interpreted, “It will have an impact on crime labs, and it will be felt.”

Justice Kennedy fears that, “By requiring analysts also to appear in the far greater number of cases where defendants do not dispute the analyst’s result, the Court imposes enormous costs on the administration of justice.”

In the current fiscal climate with budget and personnel cuts, this decision could not have come at a worse time.

“[This ruling] will have a doubly detrimental effect,” Gialamas says. “Crime labs are losing positions and those existing will have an increased work load.” You can’t just hire people, Gialamas adds. “It would take 12 to 24 months to hire and train a new analyst, even if money were available.”

Justice Kennedy cites the sheer number of cases that an analyst works on each year. Even considering that 95% of cases end in plea bargain, he estimates that Philadelphia’s 18 drug analysts will be required to testify in more than 69 trials next year and Cleveland’s 6 drug analysts (two of whom work only part time) must testify in 117. Not to mention the 500 analysts at the FBI’s lab in Quantico who conduct over a million tests a year.

“The Court’s decision means that before any of those million tests reaches a jury, at least one of the laboratory’s analysts must board a plane, find his or her way to an unfamiliar courthouse, and sit there waiting to read aloud notes made months ago,” Justice Kennedy writes.

Justice Scalia dismisses these financial and logistical concerns in his ruling. “The Confrontation Clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination. The Confrontation Clause—like those other constitutional provisions—is binding, and we may not disregard it at our convenience.”